Citation Nr: 1007221 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-29 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for a right wrist sprain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Emily Tamlyn, Associate Counsel INTRODUCTION The Veteran had active service from August 1988 to August 1992. This matter came before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the St. Petersburg, Florida, Regional Office (RO) which, in pertinent part, determined that new and material evidence had not been received to reopen the Veteran's claim of entitlement to a right wrist sprain. In August 2008, the Veteran advanced that the December 1992 rating decision which denied service connection for left knee patellofemoral syndrome was clearly and unmistakably erroneous. In April 2009, the Veteran advanced contentions which can be reasonably construed as an informal application to reopen his claim of entitlement to service connection for left knee patellofemoral syndrome. It appears that the RO has not had an opportunity to act upon the claims. Therefore, the issues are referred to the RO for action as may be appropriate. FINDINGS OF FACT 1. In December 1992, the RO denied service connection for a right wrist sprain. The Veteran was informed in writing of the adverse decision and his appellate rights in January 1993. He did not submit a notice of disagreement with the decision. 2. The documentation submitted since the December 1992 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran's claim. 3. A right scapholunate ligament tear has been shown to have originated during active service. CONCLUSIONS OF LAW 1. The December 1992 RO decision denying service connection for a right wrist sprain is final. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for a right wrist sprain has been presented. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a), 20.1103 (2009). 2. Post-operative chronic right scapholunate ligament tear residuals were incurred during active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Application to Reopen In this decision, the Board reopens and grants the Veteran's claim of entitlement to service connection for a chronic right wrist disorder. This constitutes a complete grant of the benefits sought on appeal. Thus, no discussion of VA's duty to notify and assist is necessary. Generally, absent the filing of a notice of disagreement (NOD) within one year of the date of mailing of the notification of the initial review and determination of a Veteran's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.300, 20.1103 (2009). A. Prior RO Decision In December 1992, the RO denied service connection for a right wrist sprain. The Veteran was informed in writing of the adverse decision and his appellate rights in January 1993. He did not submit a NOD with the decision. The evidence considered by the RO in formulating its decision may be briefly summarized. A March 1992 naval physical evaluation board report states that the Veteran initially developed right wrist pain in approximately 1990. On examination of the right wrist, the Veteran exhibited pain over the scapholunate joint. The Veteran was diagnosed with right wrist pain which did not exist prior to service entrance. The report of an October 1992 VA examination for compensation purposes states that the Veteran complained of right wrist pain on hyperextension of the joint and when he carries a suitcase. The Veteran was diagnosed with a "negative examination of right wrist." B. New and Material Evidence Title 38 of the Code of Federal Regulations (2009) states, in pertinent part, that: New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2009). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The evidence submitted since the December 1992 RO decision denying service connection for a right wrist sprain consists of private clinical documentation and written statements from the Veteran. A September 2008 written statement from C. W., M.D., states that he had treated the Veteran since October 2007 for right wrist pain. The Veteran was diagnosed with a partial right scapholunate ligament tear. The doctor stated that "this problem with his wrist more than likely dates back to the injury he sustained while in the service in 1992." The Board finds that Dr. W.'s September 2008 written statement constitutes new and material evidence in that it is of such significance that it raises a reasonable possibility of substantiating the Veteran's claim for service connection when considered with previous evidence of record. As new and material evidence has been received, the Veteran's claim of entitlement to service connection for a right wrist sprain is reopened. II. Service Connection Service connection may be granted for chronic disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2009). The March 1992 medical board report states that the Veteran initially developed right wrist pain in approximately 1990. On examination of the right wrist, the Veteran exhibited pain over the scapholunate joint. In his September 2008 written statement, Dr. C. states that the Veteran was diagnosed with a right scapholunate ligament tear and underwent a January 2008 surgical procedure to repair the tear. The doctor opined that: He relates that while in the service in 1992 he was seen for a wrist problem, and the documentation of that exam that he presented to my office indicates that he had a partial [scapholunate] ligament tear. He underwent surgery of the right wrist on 1-29-08 to repair the ligament. This problem with his wrist more than likely dates back to the injury he sustained while in the service in 1992. The Veteran exhibited right scapholunate area pain during active service. His private physician has determined that the Veteran's inservice right wrist pain was a manifestation of his chronic scapholunate ligamental tear. In the absence of any competent medical evidence to the contrary, the Board concludes that service connection is now warranted for post-operative right scapholunate ligament tear residuals. ORDER The Veteran's application to reopen his claim of entitlement to service connection for a right wrist sprain is granted. Service connection for post-operative right scapholunate ligament tear residuals is granted. ______________________________________________ J. T. HUTCHESON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs